WATERLOO — After listening to oral arguments for about an hour Friday, state Supreme Court Justice Daniel Doyle reserved decisions on two Article 78 proceedings initiated by the company interested in building a trash-burning incinerator in Romulus.
In addition, Doyle said he would issue a ruling at a later date on a motion to have Seneca Lake Guardian join the litigation as an intervener opposing the incinerator.
Attorney Deborah Goldberg of Earthjustice, an environmental law firm, argued that Guardian should be allowed to join the lawsuit. She told Doyle that the organization meets the legal criteria to have standing and to be an intervener.
Alan Knauf of Rochester, the lawyer representing Rochester-based Circular EnerG, disagreed. He said the proposed incinerator would not cause environmental harm to Seneca Lake, adding that the town or Romulus can protect its interests adequately without Guardian’s intervention.
Attorney Wil Burns of Ovid, who was representing Romulus along with town Attorney Patrick Morrell, said the town is not opposed to Guardian’s intervention.
Doyle said he would reserve a decision until early this week.
In the two Article 78 lawsuits filed by Circular against the town, the issues before the court were interpretations of the town zoning code by former Code Enforcement Officer Adam Schrader and amendments to that zoning code made by the Town Board in April, changes that prohibit the construction of solid-waste-disposal facilities like incinerators.
The gist of the lawsuits is that the town acted improperly in upholding an appeal by resident Alan Kiehle related to Schrader’s determination that the incinerator met the zoning code criteria as a renewable source of energy and would be allowed to move forward with a special use permit. The second lawsuit claims the town acted improperly and illegally in amending the zoning code.
Circular has since changed course and applied to the state Board on Electric Generation Siting and the Environment, as directed by the state Public Service Commission. A decision on that application is pending.
“We asked for a zoning interpretation and when we received an OK for our project,” Knauf said in court Friday. “We spent thousands of dollars on engineering and other costs, based on that.”
While Knauf argued the town violated process in its actions, Morrell presented a timeline of steps that he said showed the town acted properly, noting an Environmental Impact Statement was proper for the project.
Knauf told Doyle the town was illegally targeting a specific business by its actions, noting that the owner of the property, Rochester-based Flaum, can’t get economic benefit without electric power that the incinerator would provide.
“The town did take the required hard look at the environmental impacts of this project, and it was properly reviewed,” Burns countered.
“We have an outside company trying to cram this project through in a town that is trying to preserve what it has,” Morrell said. “That’s the issue.”
“We presented a strong case, but will await Judge Doyle’s decisions,” Knauf said after Friday’s court session. “As I stated in court, by banning waste to energy, Romulus is doing huge damage to the environment, forcing continued use of landfills and the resulting odors, greenhouse gas emissions and dioxin emissions.”
“These cases should clearly be dismissed,” Seneca Lake Guardian President Joseph Campbell said in a statement released Friday, after court concluded. “Circular EnerG’s attempt to bully the town into submission with these frivolous lawsuits just goes to show how important it is to stop predatory companies swiftly.”
Campbell said Guardian is hoping Assembly Majority Leader Joseph Morelle of Irondequoit is watching and will work with Assembly Speaker Carl Heastie and Gov. Andrew Cuomo to reconvene the Assembly and pass a bill which would prohibit incinerators in the Finger Lakes watershed. That bill passed the Senate earlier this year, but did not get to the floor of the Assembly for a vote.
“Although (Guardian) appreciates that the town of Romulus is vigorously defending its interests in this lawsuit, we represent regional interests that are broader than the town’s in this matter,” said Mary Anne Kowalski of Romulus, Guardian’s research director. “In our motion to intervene, (Guardian) seeks to ensure that those broader interests are protected now and into the future, even if the town is unable to maintain their defense over the long term because of costs of litigation, changes in board composition or other reasons.”